BLOG BULLETS: See below. In a post last March that I called “We Can Keep on Dreaming” (see it in the March 2015 link at the right), I talked about two bills introduced in Congress called the “Smarter Sentencing Act” and the “Justice Safety Valve Act of 2015” which would have dramatically cut mandatory […]
Read/Write CommentsBLOG BULLETS: The Ninth Circuit has held in multiple cases that it’s not an abuse of discretion for district courts to admit agent “expert” testimony that drug traffickers never use “blind mules.” Two recent unpublished Ninth Circuit opinions raise doubt about this testimony, by revealing information in the government’s possession that “blind mules” do exist […]
Read/Write CommentsBLOG BULLETS: A recent Supreme Court decision – Mellouli v. Lynch, 135 S. Ct. 1980 (2015) – held a state drug conviction didn’t qualify as a controlled substance offense under immigration law because the state controlled substance schedules included substances not included in the federal controlled substance schedules. This is essentially the same holding reflected […]
Read/Write CommentsBLOG BULLETS: The Supreme Court has just held the residual clause of the Armed Career Criminal Act unconstitutionally vague – in Johnson v. United States. This invalidates a host of court of appeals decisions holding various convictions to be for “violent felonies” under the residual clause, including convictions for burglary under overbroad burglary statutes; kidnapping […]
Read/Write CommentsBLOG BULLETS: Multiple cases and courts recognize the incentives of informants to lie in return for testimony that helps the government. It’s important to try to get the information you need prior to trial, because it’s much easier to effectively use the information with a jury than to use it with a court in post-conviction […]
Read/Write CommentsBLOG BULLETS: Two recent Ninth Circuit opinions support District Judge Pregerson’s opinion in United States v. Sudikoff that prosecutors have an obligation to disclose any favorable evidence, not just favorable evidence they think might affect the result. Comstock v. Humphries says that evidence is favorable when it has any affirmative, evidentiary support for the defendant’s […]
Read/Write CommentsBLOG BULLETS: Think about looking at other U.S. Attorney office discovery policies in addition to your own district’s. Other district policies may be more extensive and may have persuasive value with either your prosecutors or your judges. Other district policies may also provide good policy and legal arguments for discovery even if they don’t create […]
Read/Write CommentsBLOG BULLETS: A recent USA Today article collects discovery policy memos for most United States Attorney’s offices that USA Today obtained through FOIA. The memos vary in detail, but most contain some helpful policies about discovery to be provided, including both reinforcement of rules and case law requiring discovery and suggestions of disclosure beyond what’s legally required. […]
Read/Write CommentsBLOG BULLETS: Recent Sentencing Commission statistics reflect that probably close to half the contested sentences in fraud and theft cases in the last fiscal year were below the guidelines. A former government prosecutor who used to be a strong supporter of the guidelines has published numerous scholarly articles strongly criticizing the theft/fraud guideline since leaving […]
Read/Write CommentsBLOG BULLETS: The Sentencing Commission has adjusted the loss tables to take inflation into account, though the adjustment accounts only for inflation since 2001. The Commission has also made favorable changes to the victims enhancement, the sophisticated means enhancement, and the definition of “intended loss.” Finally, the Commission has added considerations and commentary to the […]
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